Crim Law Cases

G.R. No.
L-43530 August 3, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
AURELIO LAMAHANG, defendant-appellant.
The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First Instance of Iloilo,
finding him guilty of attempted robbery and sentencing him to suffer two years and four months of prision correccional and
to an additional penalty of ten years and one day of prision mayor for being an habitual delinquent, with the accessory
penalties of the law, and to pay the costs of the proceeding.
At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on Delgado and C.R. Fuentes
streets of the City of Iloilo, caught the accused in the act of making an opening with an iron bar on the wall of a store of
cheap goods located on the last named street. At that time the owner of the store, Tan Yu, was sleeping inside with
another Chinaman. The accused had only succeeded in breaking one board and in unfastening another from the wall,
when the policeman showed up, who instantly arrested him and placed him under custody.
The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the trial judge and the
Solicitor-General, as constituting attempted robbery, which we think is erroneous.
It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a logical relation
to a particular, concrete offense; that, which is the beginning of the execution of the offense by overt acts of the
perpetrator, leading directly to its realization and consummation. The attempt to commit an indeterminate offense,
inasmuch as its nature in relation to its objective is ambiguous, is not a juridical fact from the standpoint of the Penal
Code. There is no doubt that in the case at bar it was the intention of the accused to enter Tan Yu's store by means of
violence, passing through the opening which he had started to make on the wall, in order to commit an offense which, due
to the timely arrival of policeman Tomambing, did not develop beyond the first steps of its execution. But it is not sufficient,
for the purpose of imposing penal sanction, that an act objectively performed constitute a mere beginning of execution; it
is necessary to establish its unavoidable connection, like the logical and natural relation of the cause and its effect, with
the deed which, upon its consummation, will develop into one of the offenses defined and punished by the Code; it is
necessary to prove that said beginning of execution, if carried to its complete termination following its natural course,
without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense. Thus, in case of robbery, in order that the simple act of entering by means of
force or violence another person's dwelling may be considered an attempt to commit this offense, it must be shown that
the offender clearly intended to take possession, for the purpose of gain, of some personal property belonging to another.
In the instant case, there is nothing in the record from which such purpose of the accused may reasonably be inferred.
From the fact established and stated in the decision, that the accused on the day in question was making an opening by
means of an iron bar on the wall of Tan Yu's store, it may only be inferred as a logical conclusion that his evident intention
was to enter by means of force said store against the will of its owner. That his final objective, once he succeeded in
entering the store, was to rob, to cause physical injury to the inmates, or to commit any other offense, there is nothing in
the record to justify a concrete finding.1avvphil.ñet
It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material damage is wanting, the
nature of the action intended (accion fin) cannot exactly be ascertained, but the same must be inferred from the nature of
the acts executed (accion medio). Hence, the necessity that these acts be such that by their very nature, by the facts to
which they are related, by the circumstances of the persons performing the same, and by the things connected therewith,
they must show without any doubt, that they are aimed at the consummation of a crime. Acts susceptible of double
interpretation , that is, in favor as well as against the culprit, and which show an innocent as well as a punishable act,
must not and can not furnish grounds by themselves for attempted nor frustrated crimes. The relation existing between
the facts submitted for appreciation and the offense which said facts are supposed to produce must be direct; the intention
must be ascertained from the facts and therefore it is necessary, in order to avoid regrettable instances of injustice, that
the mind be able to directly infer from them the intention of the perpetrator to cause a particular injury. This must have
been the intention of the legislator in requiring that in order for an attempt to exist, the offender must commence the
commission of the felony directly by overt acts, that is to say, that the acts performed must be such that, without the intent
to commit an offense, they would be meaningless.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the commission of the offense,
are not punished except when they are aimed directly to its execution, and therefore they must have an immediate and
necessary relation to the offense."
Considering — says the Supreme Court of Spain in its decision of March 21, 1892 — that in order to declare that such
and such overt acts constitute an attempted offense it is necessary that their objective be known and established, or that
said acts be of such nature that they themselves should obviously disclose the criminal objective necessarily intended,
said objective and finality to serve as ground for the designation of the offense: . . . .
In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does not constitute attempted
robbery but attempted trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and decisions of the Supreme
Court of Spain therein cited). Under article 280 of the Revised Penal Code, this offense is committed when a private
person shall enter the dwelling of another against the latter's will. The accused may be convicted and sentenced for an
attempt to commit this offense in accordance with the evidence and the following allegation contained in the information:
"... the accused armed with an iron bar forced the wall of said store by breaking a board and unfastening another for the
purpose of entering said store ... and that the accused did not succeed in entering the store due to the presence of the
policeman on beat Jose Tomambing, who upon hearing the noise produced by the breaking of the wall, promptly
approached the accused ... ." Under the circumstances of this case the prohibition of the owner or inmate is presumed.
(U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21 Phil., 615;
U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the accused must be taken into consideration the
aggravating circumstances of nighttime and former convictions, — inasmuch as the record shows that several final
judgments for robbery and theft have been rendered against him — and in his favor, the mitigating circumstance of lack of
instruction. The breaking of the wall should not be taken into consideration as an aggravating circumstance inasmuch as
this is the very fact which in this case constitutes the offense of attempted trespass to dwelling.
The penalty provided by the Revised Penal Code for the consummated offense of trespass to dwelling, if committed with
force, is prision correccional in its medium and maximum periods and a fine not exceeding P1,000 (art. 280, par. 2);
therefore the penalty corresponding to attempted trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its
minimum and medium periods. Because of the presence of two aggravating circumstances and one mitigating
circumstance the penalty must be imposed in its maximum period. Pursuant to article 29 of the same Code, the accused
is not entitled to credit for one-half of his preventive imprisonment.
Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of attempted trespass to
dwelling, committed by means of force, with the aforesaid aggravating and mitigating circumstances and sentenced to
three months and one day of arresto mayor, with the accessory penalties thereof and to pay the costs.
—--
G.R. Nos. 143468-71 January 24, 2003
THE PEOPLE OF THE PHILIPPINES,plaintiff-appellee,

vs.
FREDDIE LIZADA @ FREDIE LIZADA,accused-appellant.
CALLEJO, SR., J.:
This is an automatic review of the Decision1 of the Regional Trial Court of Manila, Branch 54, finding accused-appellant
Freddie Lizada guilty beyond reasonable doubt of four (4) counts of qualified rape and meting on him the death penalty for
each count.
I. The Charges
Accused-appellant2 was charged with four (4) counts of qualified rape under four separate Informations. The accusatory
portion of each of the four Informations reads:
"That sometime in August 1998 in the City of Manila, Philippines, the said accused, with lewd designs, did then and there
willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA y AGOO, by then and there embracing her, kissing and touching her private parts, thereafter removing her
skirt and panty, placing himself on top of her and trying to insert his penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA y AGOO, against her will and consent.
Contrary to law.
xxx xxx xxx
That on or about November 5, 1998, in the City of Manila, Philippines, the said accused, with lewd designs, did then and
there willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her private parts, thereafter removing her
knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and consent.
Contrary to law.
xxx xxx xxx
That on or about October 22, 1998, in the City of Manila, Philippines, the said accused, with lewd designs, did then and
Contrary to law.
xxx xxx xxx
That on or about September 15, 1998, in the City of Manila, Philippines, the said accused, with lewd designs, did then and
Contrary to law."3
The four (4) Informations were docketed as Criminal Cases Nos. 99-171390, 99-171391, 99-171392 and 99-171393,
respectively.
Accused-appellant was arraigned on April 15, 1999, assisted by counsel de parte and entered a plea of not guilty to each
of the charges.4 A joint trial then ensued.
II. Evidence of the Prosecution5
Ricardo Orillosa and his wife, Rose Orillosa, natives of San Isidro, Bohol, had three (3) children, namely: Analia, who was
born on December 18, 1985;6 Jepsy, who was 11 years old, and Rossel, who was nine years old. However, the couple
decided to part ways and live separately. Rose left Bohol and settled in Manila with her young children. She worked as a
waitress to make both ends meet.
In 1994, Rose met accused-appellant. They decided to live together as husband and wife at No. 1252 Jose Abad Santos
Street, Moriones, Tondo, Manila. In 1996, Rose resigned from her job as a waitress. She secured a loan, bought a truck
and used it for her business.
In the meantime, Rose secured a loan anew and used the proceeds thereof to put up a video shop in her house. She sold
Avon products from house to house to augment her income. Whenever she was out of their house, Rossel and Analia
took turns in tending the video shop and attending to customers.
Sometime in 1996, Analia was in her room when accused-appellant entered. He laid on top of her, removed her T-shirt
and underwear. He then inserted his finger in her vagina. He removed his finger and inserted his penis in her vagina.
Momentarily, she felt a sticky substance coming out from his penis. She also felt pain in her sex organ. Satiated,
accused-appellant dismounted but threatened to kill her if she divulged to anyone what he did to her. Accused-appellant
then returned to his room. The incident lasted less than one hour. Petrified by the threats on her life, Analia kept to herself
what happened to her.7
Sometime in August 1997, accused-appellant entered again the room of Analia, placed himself on top of her and held her
legs and arms. He then inserted his finger into her sex organ ("fininger niya ako"). Satiated, accused-appellant left the
room. During the period from 1996 to 1998, accused-appellant sexually abused private complainant two times a week.
On November 5, 1998, at about 3:00 p.m., Analia was in the sala of their house studying her assignments.
Accused-appellant was also in the sala. Rossel tended the video shop while his mother was away. Analia went into her
room and lay down in bed. She did not lock the door of the room because her brother might enter any time. She wanted to
sleep but found it difficult to do so. Accused-appellant went to his room next to the room of Analia. He, however, entered
the room of Analia. He was wearing a pair of short pants and was naked from waist up. Analia did not mind
accused-appellant entering her room because she knew that her brother, Rossel was around. However,
accused-appellant sat on the side of her bed, placed himself on top of her, held her hands and legs and fondled her
breasts. She struggled to extricate herself. Accused-appellant removed her panty and touched her sex organ.
Accused-appellant inserted his finger into her vagina, extricated it and then inserted his penis into her vagina.
Accused-appellant ejaculated. Analia felt pain in her sex organ. Momentarily, Rossel passed by the room of Analia after
drinking water from the refrigerator, and peeped through the door. He saw accused-appellant on top of Analia.
Accused-appellant saw Rossel and dismounted. Accused-appellant berated Rossel and ordered him to go to his room
and sleep. Rossel did. Accused-appellant then left the room. Analia likewise left the room, went out of the house and
stayed outside for one hour. Rose arrived home at 6:00 p.m. However, Analia did not divulge to her mother what
accused-appellant had just done to her.
On November 9, 1998, at about 3:00 p.m., Rose left the house. Accused-appellant was in the sala of the house watching
television. Analia tended the video shop. However, accused-appellant told Analia to go to the sala. She refused, as
nobody would tend the video shop. This infuriated accused-appellant who threatened to slap and kick her.
Analia ignored the invectives and threats of accused-appellant and stayed in the video shop. When Rose returned, a
heated argument ensued between accused-appellant and Analia. Rose sided with her paramour and hit Analia. This
prompted Analia to shout. "Ayoko na, ayoko na." Shortly thereafter, Rose and Analia left the house on board the
motorcycle driven by her mother in going to Don Bosco Street, Moriones, Tondo, Manila, to retrieve some tapes which had
not yet been returned. When Rose inquired from her daughter what she meant by her statement, "ayoko na, ayoko na,"
she told her mother that accused-appellant had been touching the sensitive parts of her body and that he had been on top
of her. Rose was shocked and incensed. The two proceeded to Kagawad Danilo Santos to have accused-appellant
placed under arrest. On November 10, 1998, the two proceeded to the Western Police District where Analia gave her
Affidavit-Complaint to PO1 Carmelita Nocum in the presence of SPO2 Fe H. Avindante. She related to the police
investigator that accused-appellant had touched her breasts and arms in August, 1998, September 15, 1998, October 22,
1998 and on November 5, 1998, at 3:00 p.m. Analia then submitted herself to genitalia examination by Dr. Armie Umil, a
medico-legal officer of the NBI. The medico-legal officer interviewed Analia, told him that she was raped in May, 1997 at
3:00 p.m. and November 5, 1998 at 3:00 p.m.8
Dr. Umil prepared and signed a report on "Living Case No. MO-98-1265" which contained her findings during her
examination on Analia, thus:
"xxx xxx xxx
Fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts, developed, hemispherical, firm. —,
brown, 3.0 cms. in diameter. Nipples brown, protruding, 0.7 cms. in diameter.
No extragenital physical injuries noted.
GENITAL EXAMINATION:
Pubic hair, fully grown, moderate. Labia majora and minora, coaptated. Fourchette, tense. Vetibular mucosa, pinkish.
Hymen, tall, thick, intact. Hymenal orifice measures, 1.5 cms. in diameter. Vaginal walls, tight. Rugosities, prominent.
CONCLUSIONS:
1). No evident sign of extragenital physical injuries noted on the body of the subject at the time of examination.
2). Hymen, intact and its orifice small (1.5 cms. in diameter) as to preclude complete penetration by an average-sized
adult Filipino male organ in full erection without producing any genital injury."9
Subsequently, Analia told her mother that "mabuti na lang iyong panghihipo lang ang sinabi ko." When Rose inquired from
her daughter what she meant by her statement, Analia revealed to her mother that accused-appellant had sexually
abused her. On December 15, 1998, Analia executed a "Dagdag na Salaysay ng Paghahabla" and charged
accused-appellant with rape.10
III. The Defenses and Evidence of Accused-Appellant
Accused-appellant testified in his defense. He declared that after a month of courtship, he and Rose agreed in 1994 to live
together as husband and wife. He was then a utility worker with the Navotas Branch of the Philippine Banking
Corporation. Rose, on the other hand, was a waitress at the Golden Bird beer house at Rizal Avenue, Manila.
Accused-appellant denied having raped Analia. He claimed that he loved the children of Rose as if they were his own
children. He took care of them, as in fact he cooked and prepared their food before they arrived home from school. At
times, he ironed their school uniforms and bathed them, except Analia who was already big. Analia was hard-headed
because she disobeyed him whenever he ordered her to do some errands. Because of Analia's misbehavior,
accused-appellant and Rose oftentimes quarreled. Rose even demanded that accused-appellant leave their house.
Another irritant in his and Rose's lives were the frequent visits of the relatives of her husband.
Sometime in 1997, accused-appellant was retrenched from his employment and received a separation pay of P9,000.00
which he used to put up the VHS Rental and Karaoke from which he earned a monthly income of P25,000.00. While living
together, accused-appellant and Rose acquired two colored television sets, two VHS Hi-fi recorders, one VHS player, one
washing machine, one scooter motor, two VHS rewinders, one sala set, one compact disc player and many other
properties.
Accused-appellant ventured that Rose coached her children Analia and Rossel to testify against him and used them to
fabricate charges against him because Rose wanted to manage their business and take control of all the properties they
acquired during their coverture. Also, Rose was so exasperated because he had no job.
IV. The Verdict
On May 29, 2000, the trial court rendered judgment against accused-appellant finding him guilty beyond reasonable doubt
of four (4) counts of rape, defined and penalized in the seventh paragraph, no. 1, Art. 335 of the Revised Penal Code, and
meted on him the death penalty for each count. The dispositive portion of the decision reads:
"From all the evidence submitted by the prosecution, the Court concludes that the accused is guilty beyond reasonable
doubt of the crime charged against him in these four (4) cases, convicts him thereof, and sentences him to DEATH
PENALTY in each and every case as provided for in the seventh paragraph, no. 1, Article 335 of the Revised Penal Code.
SO ORDERED."11
V. Assigned Errors of the Trial Court
Accused-appellant assailed the decision of the court a quo and averred in his brief that:
"THE TRIAL COURT GRAVELY ERRED IN NOT MAKING A FINDING OF FACT IN ITS DECISION AND SUCH FAILURE
IS A REVERSIBLE ERROR."12
xxx xxx xxx
"THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF FOUR (4) COUNTS OF RAPE
DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.13
VI. Findings of the Court
On the first assignment of error, accused-appellant contends that the decision of the trial court is null and void as it failed
to comply with the requirements of Section 14, Article VIII of the 1987 Constitution and Section 1, Rule 36 of the 1997
Rules of Civil Procedure, as amended. He avers that the court a quo made no findings of facts in its decision. The trial
court merely summarized the testimonies of the witnesses of the prosecution and those of accused-appellant and his
witnesses, and forthwith set forth the decretal portion of said decision. The trial court even failed to state in said decision
the factual and legal basis for the imposition of the supreme penalty of death on him. The Solicitor General, on the other
hand, argues that there should be no mechanical reliance on the constitutional provision. Trial courts may well-nigh
synthesize and simplify their decisions considering that courts are harassed by crowded dockets and time constraints.
Even if the trial court did not elucidate the grounds as the legal basis for the penalties imposed, nevertheless the decision
is valid. In any event, the Solicitor General contends that despite the infirmity of the decision, there is no need to remand
the case to the trial court for compliance with the constitutional requirement as the Court may resolve the case on its
merits to avoid delay in the final disposition of the case and afford accused-appellant his right to a speedy trial.
The contention of accused-appellant is well-taken. Article VIII, paragraph 14 of the 1987 Constitution provides that "no
decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is
based." This requirement is reiterated and implemented by Rule 120, Section 2 of the 1985 Rules on Criminal Procedure,
as amended, which reads:
"SEC. 2. Form and contents of judgment. — The judgment must be written in the official language, personally and directly
prepared by the judge and signed by him and shall contain clearly and distinctly a statement of the facts proved or
admitted by the accused and the law upon which the judgment is based.
If it is of conviction, the judgment shall state (a) the legal qualification of the offense constituted by the acts committed by
the accused, and the aggravating or mitigating circumstances attending the commission thereof, if there are any; (b) the
participation of the accused in the commission of the offense, whether as principal, accomplice, or accessory after the
fact; (c) the penalty imposed upon the accused; and (d) the civil liability or damages caused by the wrongful act to be
recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate
action has been reserved or waived."14
The purpose of the provision is to inform the parties and the person reading the decision on how it was reached by the
court after consideration of the evidence of the parties and the relevant facts, of the opinion it has formed on the issues,
and of the applicable laws. The parties must be assured from a reading of the decision of the trial court that they were
accorded their rights to be heard by an impartial and responsible judge.15 More substantial reasons for the requirement
are:
"For one thing, the losing party must be given an opportunity to analyze the decision so that, if permitted, he may elevate
what he may consider its errors for review by a higher tribunal. For another, the decision if well-presented and reasoned,
may convince the losing party of its merits and persuade it to accept the verdict in good grace instead of prolonging the
litigation with a useless appeal. A third reason is that decisions with a full exposition of the facts and the law on which they
are based, especially those coming from the Supreme Court, will constitute a valuable body of case law that can serve as
useful references and even as precedents in the resolution of future controversies."16
The trial court is mandated to set out in its decision the facts which had been proved and its conclusions culled therefrom,
as well as its resolution on the issues and the factual and legal basis for its resolution.17Trial courts should not merely
reproduce the respective testimonies of witnesses of both parties and come out with its decretal conclusion.
In this case, the trial court failed to comply with the requirements under the Constitution and the Rules on Criminal
Procedure. It merely summarized the testimonies of the witnesses of the prosecution and of accused-appellant on direct
and cross examinations and merely made referral to the documentary evidence of the parties then concluded that, on the
basis of the evidence of the prosecution, accused-appellant is guilty of four (4) counts of rape and sentenced him to
death, on each count.
The trial court even failed to specifically state the facts proven by the prosecution based on their evidence, the issues
raised by the parties and its resolution of the factual and legal issues, as well as the legal and factual bases for convicting
accused-appellant of each of the crimes charged. The trial court rendered judgment against accused-appellant with the
court declaration in the decretal portion of its decision that it did so based on the evidence of the prosecution. The trial
court swallowed hook, line and sinker the evidence of the prosecution. It failed to explain in its decision why it believed
and gave probative weight to the evidence of the prosecution. Reading the decision of the trial court, one is apt to
conclude that the trial court ignored the evidence of accused-appellant. The trial court did not even bother specifying the
factual and legal bases for its imposition of the supreme penalty of death on accused-appellant for each count of rape.
The trial court merely cited seventh paragraph, no. 1, Article 335 of the Revised Penal Code. The decision of the trial
court is a good example of what a decision, envisaged in the Constitution and the Revised Rules of Criminal Procedure,
should not be.
The Court would normally remand the case to the trial court because of the infirmity of the decision of the trial court, for
compliance with the constitutional provision. However, to avert further delay in the disposition of the cases, the Court
decided to resolve the cases on their merits considering that all the records as well as the evidence adduced during the
trial had been elevated to the Court.18 The parties filed their respective briefs articulating their respective stances on the
factual and legal issues.
In reviewing rape cases, this Court is guided by the following principles: (1) to accuse a man of rape is easy but to
disprove it is difficult though the accused may be innocent; (2) considering the nature of things, and only two persons are
usually involved in the crime of rape, the testimony of the complainant should be scrutinized with great caution; (3) the
evidence for the prosecution must stand or fall on its own merits and not be allowed to draw strength from the weakness
of the evidence of the defense.19 By the very nature of the crime of rape, conviction or acquittal depends almost entirely
on the credibility of the complainant's testimony because of the fact that usually only the participants can testify as to its
occurrence. However, if the accused raises a sufficient doubt as to any material element of the crime, and the prosecution
is unable to overcome it with its evidence, the prosecution has failed to discharge its burden of proving the guilt of the
accused beyond cavil of doubt and hence, the accused is entitled to an acquittal.
Anent the second assignment of error, we will resolve the same for convenience, as follows:
Re: CRIMINAL CASES NOS. 99-171392 and 99-171393 (covering the crime of rape committed on or about October 22,
1998 and on or about September 15, 1998)
Accused-appellant avers that the prosecution failed to adduce the requisite quantum of evidence that he raped the private
complainant precisely on September 15, 1998 and October 22, 1998. Moreover, the medical findings of Dr. Armie Umil
show that the hymen of the private complainant was intact and its orifice so small as to preclude complete penetration by
an average size adult Filipino male organ in full erection without producing any genital injury. The physical evidence belies
private complainant's claim of having been deflowered by accused-appellant on four different occasions. The Office of the
Solicitor General, for its part, contends that the prosecution through the private complainant proved the guilt of
accused-appellant for the crime charged on both counts.
The contention of accused-appellant does not persuade the Court. The private complainant testified that since 1996,
when she was only eleven years old, until 1998, for two times a week, accused-appellant used to place himself on top of
her and despite her tenacious resistance, touched her arms, legs and sex organ and inserted his finger and penis into her
vagina. In the process, he ejaculated. Accused-appellant threatened to kill her if she divulged to anyone what he did to
her.20 Although private complainant did not testify that she was raped on September 15, 1998 and October 22, 1998,
nevertheless accused-appellant may be convicted for two counts of rape, in light of the testimony of private complainant.
It bears stressing that under the two Informations, the rape incidents are alleged to have been committed "on or about
September 15, 1998" and "on or about October 22, 1998." The words "on or about" envisage a period, months or even
two or four years before September 15, 1998 or October 22, 1998. The prosecution may prove that the crime charged
was committed on or about September 15, 1998 and on or about October 22, 1998.
In People vs. Gianan,21 this Court affirmed the conviction of accused-appellant of five (5) counts of rape, four of which
were committed in December 1992 (two counts) and one each in March and April, 1993 and in November, 1995 and one
count of acts of lasciviousness committed in December 1992, on a criminal complaint for multiple rape, viz:
"That sometime in November 1995, and some occasions prior and/or subsequent thereto, in the Municipality of
Dasmariñas, Province of Cavite, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd
designs, taking advantage of his superior strength over the person of his own twelve (12) year old daughter, and by
means of force, violence and intimidation, did, then and there, willfully, unlawfully and feloniously, have repeated carnal
knowledge of Myra M. Gianan, against her will and consent, to her damage and prejudice."22
On the contention of accused-appellant in said case that his conviction for rape in December 1992 was so remote from
the date (November 1995) alleged in the Information, so that the latter could no longer be considered as being "as near to
the actual date at which the offense was committed" as provided under Section 11, Rule 110 of the Rules on Criminal
Procedure, as amended, this Court held:
"Accused-appellant nevertheless argues that his conviction for rape in December 1992 is so remote from the date
(November 1995) alleged in the information, so that the latter could no longer be considered as being "as near to the
actual date at which the offense was committed" as provided under Rule 110, §11.
This contention is also untenable. In People v. Garcia, this Court upheld a conviction for ten counts of rape based on an
information which alleged that the accused committed multiple rape "from November 1990 up to July 21, 1994," a time
difference of almost four years which is longer than that involved in the case at bar. In any case, as earlier stated,
accused-appellant's failure to raise a timely objection based on this ground constitutes a waiver of his right to object."23
Moreover, when the private complainant testified on how accused-appellant defiled her two times a week from 1996 until
1998, accused-appellant raised nary a whimper of protest. Accused-appellant even rigorously cross-examined the private
complainant on her testimony on direct examination. The presentation by the prosecution, without objection on the part of
accused-appellant, of evidence of rape committed two times a week from 1996 until 1998 (which includes September 15,
1998 and October 22, 1998) to prove the charges lodged against him constituted a waiver by accused-appellant of his
right to object to any perceived infirmity in, and in the amendment of, the aforesaid Informations to conform to the
evidence adduced by the prosecution.
The barefaced fact that private complainant remained a virgin up to 1998 does not preclude her having been repeatedly
sexually abused by accused-appellant. The private complainant being of tender age, it is possible that the penetration of
the male organ went only as deep as her labia. Whether or not the hymen of private complainant was still intact has no
substantial bearing on accused-appellant's commission of the crime.24 Even, the slightest penetration of the labia by the
male organ or the mere entry of the penis into the aperture constitutes consummated rape. It is sufficient that there be
entrance of the male organ within the labia of the pudendum.25 In People vs. Baculi, cited in People vs. Gabayron,26 we
held that there could be a finding of rape even if despite repeated intercourse over a period of four years, the complainant
still retained an intact hymen without injury. In these cases, the private complainant testified that the penis of
accused-appellant gained entry into her vagina:
"Fiscal Carisma
(continuing)
After your underwear was removed by the accused, what happened next?
Witness:
He laid himself on top of me, sir.
Q What did he do while he was on top of you?
A He inserted his finger (Finenger nya ako, ipinatong nya yong ano nya)
Q Can you please describe more specifically what is this and I quote "Pinatong nya yong ano nya" and where did he
place it?
A His organ, sir.
Q Where did he place his organ?
A In my organ, sir. (sa ari ko po.)
Q At this very juncture madam witness, what did you feel?
A I felt pain, sir, and I also felt that there was a sticky substance that was coming out, sir."27 (Emphasis supplied)
We agree with accused-appellant that he is guilty only of two counts of simple rape, instead of qualified rape. The
evidence on record shows that accused-appellant is the common-law husband of Rose, the mother of private
complainant. The private complainant, as of October 1998, was still 13 years old, and under Article 335 as amended by
Republic Act 7659, the minority of the private complainant, concurring with the fact that accused-appellant is the
common-law husband of the victim's mother, is a special qualifying circumstance warranting the imposition of the death
penalty.28 However, said circumstance was not alleged in the Informations as required by Section 8, Rule 110 of the
Revised Rules on Criminal Procedure which was given retroactive effect by this Court because it is favorable to the
accused.29 Hence, even if the prosecution proved the special qualifying circumstance of minority of private complainant
and relationship, the accused-appellant being the common-law husband of her mother, accused-appellant is guilty only of
simple rape. Under the given law, the penalty for simple rape is reclusion perpetua. Conformably with current
jurisprudence, accused-appellant is liable to private complainant for civil indemnity in the amount of P50,000.00 and moral
damages in the amount of P50,000.00 for each count of rape, or a total of P200,000.00.
Re: Criminal Cases Nos. 99-171390and 99-171391 (covering the crime committed on or about August 1998 and
November 5, 1998)
Accused-appellant avers that (a) the Information in Criminal Case No. 99-171390 is defective because the date of the
offense "on or about August 1998" alleged therein is too indefinite, in violation of Rule 110, Section 11 of the Revised
Rules on Criminal Procedure which reads:
"Sec. 11. Date of commission of the offense. — It is not necessary to state in the complaint or information the precise date
the offense was committed except when it is a material ingredient of the offense. The offense may be alleged to have
been committed on a date as near as possible to the actual date of its commission. (11a)"30
Accused-appellant further asserts that the prosecution failed to prove that he raped private complainant in August 1998.
Hence, he argues, he should be acquitted of said charge. The Office of the Solicitor General, for its part, argued that the
date "on or about August 1998" is sufficiently definite. After all, the date of the commission of the crime of rape is not an
essential element of the crime. The prosecution adduced conclusive proof that accused-appellant raped private
complainant on or about August 1998, as gleaned from her testimony during the trial.
The Court does not agree with accused-appellant. It bears stressing that the precise date of the commission of the crime
of rape is not an essential element of the crime. Failure to specify the exact date when the rape was committed does not
render the Information defective. The reason for this is that the gravamen of the crime of rape is carnal knowledge of the
private complainant under any of the circumstances enumerated under Article 335 of the Revised Penal Code, as
amended. Significantly, accused-appellant did not even bother to file a motion for a bill of particulars under Rule 116,
Section 9 of the Revised Rules on Criminal Procedure before he was arraigned. Indeed, accused-appellant was duly
arraigned under the Information and entered a plea of not guilty to the charge without any plaint on the sufficiency of the
Information. Accused-appellant even adduced his evidence after the prosecution had rested its case. It was only on
appeal to this Court that accused-appellant questioned for the first time the sufficiency of the Information filed against him.
It is now too late in the day for him to do so. Moreover, in People vs. Salalima,31 this Court held that:
"Failure to specify the exact dates or time when the rapes occurred does not ipso facto make the information defective on
its face. The reason is obvious. The precise date or time when the victim was raped is not an element of the offense. The
gravamen of the crime is the fact of carnal knowledge under any of the circumstances enumerated under Article 335 of
the Revised Penal Code. As long as it is alleged that the offense was committed at any time as near to the actual date
when the offense was committed an information is sufficient. In previous cases, we ruled that allegations that rapes were
committed "before and until October 15, 1994," "sometime in the year 1991 and the days thereafter," "sometime in
November 1995 and some occasions prior and/or subsequent thereto" and "on or about and sometime in the year 1988"
constitute sufficient compliance with Section 11, Rule 110 of the Revised Rules on Criminal Procedure.
In this case, although the indictments did not state with particularity the dates when the sexual assaults took place, we
believe that the allegations therein that the acts were committed "sometime during the month of March 1996 or
thereabout," "sometime during the month of April 1996 or thereabout," "sometime during the month of May 1996 or
thereabout" substantially apprised appellant of the crimes he was charged with since all the elements of rape were stated
in the informations. As such, appellant cannot complain that he was deprived of the right to be informed of the nature of
the cases filed against him. Accordingly, appellant's assertion that he was deprived of the opportunity to prepare for his
defense has no leg to stand on."
The prosecution proved through the testimony of private complainant that accused-appellant raped her two times a week
in 1998. As in Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is guilty only of simple rape.
As to the crime of rape subject of Criminal Case No. 99-171391, accused-appellant avers that he is not criminally liable of
rape. We agree with accused-appellant. The collective testimony of private complainant and her younger brother Rossel
was that on November 5, 1998, accused-appellant who was wearing a pair of short pants but naked from waist up,
entered the bedroom of private complainant, went on top of her, held her hands, removed her panty, mashed her breasts
and touched her sex organ. However, accused-appellant saw Rossel peeping through the door and dismounted. He
berated Rossel for peeping and ordered him to go back to his room and to sleep. Accused-appellant then left the room of
the private complainant. The testimony of private complainant on direct examination reads:
"Fiscal Carisma:
Q In between 1996 and August 1997?
A Yes, sir, sometimes two (2) times a week.
Q In November of 1998, do you recall of any unusual experience that happened to you again?
A Yes, sir.
Q What was this unusual experience of yours?
A He laid himself on top of me, sir.
Q You said "he" whom are you referring to?
A Freedie Lizada Jakosalem, sir.

Q The same person you pointed to earlier?
A Yes, sir.
Q You said he placed himself on top of you in November, 1998, what did he do while he was on top of you?
A He's smashing my breast and he was also touching my arms and my legs, sir.
Q What else if any madam witness?
A He was also touching my sex organ, sir.
Q What else, if any?
Atty. Estorco:
May we take note of the same objection your honor, the prosecution —
Court:
Same ruling. Let the complainant continue considering that she is crying and still young.
Witness:
None else, sir.
Fiscal Carisma:
With what part of his body did he touch your sex organ?
Atty. Estorco:
Your Honor, that is —
Court:
May answer.
Fiscal Carisma:
I will re-propound the question, your honor.
You said that he touched your sex organ, will you tell the court with what part of his body, did he touch your sex organ?
Witness:
With his hands, sir.
Q What about after November 1998 — was this the last incident, this unusual thing that you experienced from the
hands of the accused was this that last time, the one you narrated in November 1998?
A Yes, sir."32
On cross-examination, the private complainant testified, thus:
"Atty. Balaba:
Q Who was that somebody who entered the room?
A My stepfather Freedie Lizada, sir.

Q He was fully dressed at that time, during the time, is that correct?
A Yes, sir, he was dressed then, sir.
Q And he had his pants on, is that correct?
A He was wearing a short pants, sir.
Q Was it a T-shirt that he had, at that time or a polo shirt?
A He was not wearing any shirt then, sir, he was naked.
Q When you realized that somebody was entering the room were you not afraid?
A No, sir, I was not afraid.
Q What happened when you realized that somebody entered the room, and the one who entered was your
stepfather, Freedie Lizada?
A I did not mind him entering the room because I know that my brother was around but suddenly I felt that somebody
was holding me.
Q He was holding you, where were you when he held you?
A I was in the bed, sir, lying down.
Q You were lying down?
A Yes, sir.
Q What part of the body did the accused Freedie Lizada touched you?
A My two arms, my legs and my breast, sir.
Q Do you mean to tell us that he was holding your two arms and at the same time your legs, is that what you are
trying to tell us?
A He held me first in my arms and then my legs, sir.
Q He held you first by your arms, is that what you are trying to tell us?
Fiscal Carisma:
Already answered your honor, he held the arms and then the legs.
Court:
Already answered.
Atty. Balaba:
Q Your honor, I am just trying to —
Court:
Proceed.
Atty. Balaba:
Q He held your arms with his two hands?

A Only with one hand, sir.
Q Which hand were you touched?
A I do not know which hand, sir.
Q Which arm of yours was held by Freedie Lizada?
A I could not recall, sir.
Q Which side of your body was Freedie Lizada at that time?
A I cannot recall, sir.
Q What was the position of Freedie Lizada when he held your arms?
A He was sitting on our bed, sir.
Q Which side of your bed was Freedie Lizada sitting on?
A I do not know, sir. I cannot recall.
Atty. Balaba:
Can we take a recess your honor?
Court:
How long will it take you to finish your cross?
Atty. Balaba:
We will confront the witness with so many things your honor.
Court:
Yes, that's why I am asking you how long will it take you to finish your cross?
Atty. Balaba:
About another hour, sir.
Court:
So we will be finished by 11:15, proceed.
Atty. Balaba:
You cannot also remember which leg was held by Freedie Lizada?
A I cannot recall, sir.
Q When this happened, did you not shout for help?
A I did not ask for help, I was motioning to resist him, so that he would go out, sir. I was struggling to free myself from
him, sir.
Q And you were not able to extricate yourself from him?
A I was not able to extricate myself, sir.

Q You were struggling with one arm of Lizada holding your arm, and the other hand was holding your leg, is that
what you are trying to tell us?
A No, sir, it's not like that.
Q Could you tell us, what happened, you did not shout for help and you were trying to extricate yourself, what
happened?
A He suddenly went out of the room, sir.
Q Now, he went —
Court:
You did not shout during that time?
A No, your honor."33
Rossel, the nine-year old brother of the private complainant corroborated in part his sister's testimony. He testified on
direct examination, thus:
"Fiscal Carisma: (continuing)
Q Now, on November 2, 1998 do you recall where you were at about 3:00 o'clock?
A I was outside our house, sir.
Q Where was your house again, Mr. witness, at that time? Where was your house at that date, time and place? At
that date and time?
A 1252 Jose Abad Santos, Tondo, Manila, sir.
Court:
Q The same address?
A. Yes, sir.
Fiscal Carisma:
Q On that date, time and place, do your recall where your sister Anna Lea Orillosa was?
A Yes, sir.
Q Where was she?
A She was sleeping, sir.
Q Now, on that date, time and place you said you were outside your house, did you stay the whole afternoon outside
your house?
A No, sir.
Q Where did you go next?
A Inside, sir.
Q For what purpose did you get inside your house?
A Because I was thirsty, sir.

Q So you went to the fridge to get some water?
A Yes, sir.
Q And what happened as you went inside your house to get some water?
A I saw my stepfather removing the panty of my sister and he touched her and then he laid on top of her, sir.
Q Do you see your stepfather inside the courtroom now?
A Yes, sir.
Q Will you point to him?
A He is the one, sir.
Court Interpreter:
Witness pointing to a male person who when asked answers to the name Freedie Lizada.
Fiscal Carisma:
Q This thing that your father was — that your stepfather did to your elder sister, did you see this before or after you
went to the fridge to get some water?
A I already got water then, sir.
Q What did you do as you saw this thing being done by your stepfather to your elder sister?
A I was just looking at them when he saw me, sir.
Q Who, you saw who? You are referring to the accused Freedie Lizada?
A Yes, sir.
Q So, what did you do as you were seen by your stepfather?
A He scolded me, he shouted at me, he told me something and after that he went to the other room and slept, sir."34
Rossel testified on cross-examination, thus:
"Q So you got thirsty, is that correct, and went inside the house?
A Yes, sir.
Q And you took a glass of water from the refrigerator?
A Yes, sir.
Q And it was at this time that you saw the accused Freedie Lizada touching your sister?
A Yes, sir.
Q Where was this refrigerator located?
A In front of the room where my sister sleeps, sir.
Q So the door of your sister's room was open?
A Yes, sir.
Q And — okay, you said your sister was sleeping. What was the position of your sister when you said the accused
removed her panty?
A She was lying straight, but she was resisting, sir.
Q Were you noticed by your sister at that time?
A No, sir.
Q And your sister did not call for help at that time?
A No, sir.
Q And all this time you saw the accused doing this, from the refrigerator where you were taking a glass of water?
A Yes, sir.
Q Did you not say something to the accused?
A No, sir, I was just looking.
Q So your sister was lying down when the accused removed her panty, is that what you are trying to tell us?
A Yes, sir.
Q And where was the — and the accused saw you when he was removing the panty of your sister?
A Not yet, sir, but after a while he looked at the refrigerator because he might be thirsty.
Q So — you said the accused was touching your sister. What part of her body was touched by the accused?
A Here, sir.
Court Interpreter:
Witness pointing at the lower portion of the body.
Atty. Balaba:
Q You saw with what hand was the accused touching your sister?
A Yes, sir.
Q What hand was he touching your sister?
A This hand, sir.
Court Interpreter:
Witness raising his right hand.
Atty. Balaba:
Q And which part of your sister's body was the accused touching with his right hand? Your sister's body was the
accused touching with his right hand?
A Her right leg, sir.
Q How about his left hand, what was the accused doing with his left hand?
A Removing her panty, sir.

Q Removing her?
A Panty, sir.
Q Which hand of your sister was being removed with the left hand of the accused?
Court:
Which?
Atty. Balaba:
Which hand, which hand?
Fiscal Carisma:
The question is vague, your honor.
Atty. Balaba:
Because he said that removing the hand —
Fiscal Carisma:
He said removing the panty.
Atty. Balaba:
Is that panty? I'm sorry.
Q So, the accused was touching with his right hand the left thigh of your sister —
Fiscal Carisma:
The right thigh.
Atty. Balaba:
Q Rather the right thigh of your sister and with his left hand removing the panty, is that what you are telling to tell us?
A Yes, sir.
Q And your sister all the time was trying to — was struggling to get free, is that not correct?
A Yes, sir, she was resisting. (witness demonstrating)
Q She was struggling — was the accused able to remove the panty?
A Yes, sir.
Q And all the time you were there looking with the glass of water in your hand?
A Yes, sir."35
In light of the evidence of the prosecution, there was no introduction of the penis of accused-appellant into the aperture or
within the pudendum of the vagina of private complainant. Hence, accused-appellant is not criminally liable for
consummated rape.36
The issue that now comes to fore is whether or not accused-appellant is guilty of consummated acts of lasciviousness
defined in Article 336 of the Revised Penal Code or attempted rape under Article 335 of the said Code, as amended in
relation to the last paragraph of Article 6 of the Revised Penal Code. In light of the evidence on record, we believe that
accused-appellant is guilty of attempted rape and not of acts of lasciviousness.
Article 336 of the Revised Penal Code reads:
"Art. 336. Acts of Lasciviousness. — Any person who shall commit any act of lasciviousness upon other persons of either
sex, under any of the circumstances mentioned in the preceding article, shall be punished by prision correccional."37
For an accused to be convicted of acts of lasciviousness, the prosecution is burdened to prove the confluence of the
following essential elements:
"1. That the offender commits any act of lasciviousness or lewdness.
2. That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise unconscious; or
c. When the offended party is under 12 years of age."38
"Lewd" is defined as obscene, lustful, indecent, lecherous. It signifies that form of immorality which has relation to moral
impurity; or that which is carried on a wanton manner.39
The last paragraph of Article 6 of the Revised Penal Code reads:
"There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own
spontaneous desistance."
The essential elements of an attempted felony are as follows:
"1. The offender commences the commission of the felony directly by overt acts;
2. He does not perform all the acts of execution which should produce the felony;
3. The offender's act be not stopped by his own spontaneous desistance;
4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance."40
The first requisite of an attempted felony consists of two elements, namely:
"(1) That there be external acts;
(2) Such external acts have direct connection with the crime intended to be committed."41
An overt or external act is defined as some physical activity or deed, indicating the intention to commit a particular crime,
more than a mere planning or preparation, which if carried out to its complete termination following its natural course,
without being frustrated by external obstacles nor by the spontaneous desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense.42 The raison d'etre for the law requiring a direct overt act is that, in a majority of
cases, the conduct of the accused consisting merely of acts of preparation has never ceased to be equivocal; and this is
necessarily so, irrespective of his declared intent. It is that quality of being equivocal that must be lacking before the act
becomes one which may be said to be a commencement of the commission of the crime, or an overt act or before any
fragment of the crime itself has been committed, and this is so for the reason that so long as the equivocal quality
remains, no one can say with certainty what the intent of the accused is.43 It is necessary that the overt act should have
been the ultimate step towards the consummation of the design. It is sufficient if it was the "first or some subsequent step
in a direct movement towards the commission of the offense after the preparations are made."44 The act done need not
constitute the last proximate one for completion. It is necessary, however, that the attempt must have a causal relation to
the intended crime.45 In the words of Viada, the overt acts must have an immediate and necessary relation to the
offense.46
Acts constitutive of an attempt to commit a felony should be distinguished from preparatory acts which consist of devising
means or measures necessary for accomplishment of a desired object or end.47 One perpetrating preparatory acts is not
guilty of an attempt to commit a felony. However, if the preparatory acts constitute a consummated felony under the law,
the malefactor is guilty of such consummated offense.48 The Supreme Court of Spain, in its decision of March 21, 1892,
declared that for overt acts to constitute an attempted offense, it is necessary that their objective be known and
established or such that acts be of such nature that they themselves should obviously disclose the criminal objective
necessarily intended, said objective and finality to serve as ground for designation of the offense.49
There is persuasive authority that in offenses not consummated as the material damage is wanting, the nature of the
action intended (accion fin) cannot exactly be ascertained but the same must be inferred from the nature of the acts
executed (accion medio).50 Hence, it is necessary that the acts of the accused must be such that, by their nature, by the
facts to which they are related, by circumstances of the persons performing the same, and b the things connected
therewith, that they are aimed at the consummation of the offense. This Court emphasized in People vs. Lamahang51 that:
"The relation existing between the facts submitted for appreciation and the offense which said facts are supposed to
produce must be direct; the intention must be ascertained from the facts and therefore it is necessary, in order to avoid
regrettable instances of injustice, that the mind be able to cause a particular injury."52
If the malefactor does not perform all the acts of execution by reason of his spontaneous desistance, he is not guilty of an
attempted felony.53 The law does not punish him for his attempt to commit a felony.54 The rationale of the law, as explained
by Viada:
"La Ley, en efecto, no hiere sino a pesar suyo; prefiere impedir el crimen que castigarlo. Si el autor de la tentativa,
despues de haber comenzado a ejecutar el delito por actos exteriores, se detiene, por un sentimiento libre y espontaneo,
en el borde del abismo, salvo esta. Es un llamamiento al remordimiento, a la conciencia, una gracia un perdon que
concede la Ley al arrepentimiento voluntario."55
As aptly elaborated on by Wharton:
"First, the character of an attempt is lost when its execution is voluntarily abandoned. There is no conceivable overt act to
which the abandoned purpose could be attached. Secondly, the policy of the law requires that the offender, so long as he
is capable of arresting an evil plan, should be encouraged to do so, by saving him harmless in case of such retreat before
it is possible for any evil consequences to ensue. Neither society, nor any private person, has been injured by his act.
There is no damage, therefore, to redress. To punish him after retreat and abandonment would be to destroy the motive
for retreat and abandonment."56
It must be borne in mind, however, that the spontaneous desistance of a malefactor exempts him from criminal liability for
the intended crime but it does not exempt him from the crime committed by him before his desistance.57
In light of the facts established by the prosecution, we believe that accused-appellant intended to have carnal knowledge
of private complainant. The overt acts of accused-appellant proven by the prosecution were not mere preparatory acts. By
the series of his overt acts, accused-appellant had commenced the execution of rape which, if not for his spontaneous
desistance, will ripen into the crime of rape. Although accused-appellant desisted from performing all the acts of execution
however his desistance was not spontaneous as he was impelled to do so only because of the sudden and unexpected
arrival of Rossel. Hence, accused-appellant is guilty only of attempted rape.58 In a case of similar factual backdrop as this
case, we held:
"Applying the foregoing jurisprudence and taking into account Article 6 of the Revised Penal Code, the appellant can only
be convicted of attempted rape. He commenced the commission of rape by removing his clothes, undressing and kissing
his victim and lying on top of her. However, he failed to perform all the acts of execution which should produce the crime
of rape by reason of a cause other than his own spontaneous desistance, i.e., by the timely arrival of the victim's brother.
Thus, his penis merely touched Mary Joy's private organ. Accordingly, as the crime committed by the appellant is
attempted rape, the penalty to be imposed on him should be an indeterminate prison term of six (6) years of prision
correccional as minimum to twelve (12) years of prision mayor as maximum."
The penalty for attempted rape is prision mayor which is two degrees lower than reclusion perpetua.59 Accused-appellant
should be meted an indeterminate penalty the minimum of which should be taken from prision correccional which has a
range of from six months and one day to six years and the maximum of which shall be taken from the medium period of
prision mayor which has a range of from eight years and one day to ten years, without any modifying circumstance.
Accused-appellant is also liable to private complainant for moral damages in the amount of P25,000.00.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Manila, Branch 54, is SET ASIDE.
Another judgment is hereby rendered as follows:
1. In Criminal Case No. 99-171390, accused-appellant is hereby found guilty beyond reasonable doubt of simple rape
under Article 335 of the Revised Penal Code as amended and is hereby meted the penalty of reclusion perpetua.
Accused-appellant is also hereby ordered to pay private complainant Analia Orillosa the amounts of P50,000.00 by way of
civil indemnity and P50,000.00 by way of moral damages;
2. In Criminal Case No. 99-171391, accused-appellant is hereby found guilty of attempted rape under Article 335 of the
Revised Penal Code as amended in relation to Article 6 of the said Code and is hereby meted an indeterminate penalty of
from six years of prision correccional in its maximum period, as minimum to ten years of prision mayor in its medium
period, as maximum. Accused-appellant is hereby ordered to pay private complainant Analia Orillosa the amount of
P25,000.00 by way of moral damages; and,
3. In Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is hereby found guilty beyond reasonable doubt
of two counts of simple rape, defined in Article 335 of the Revised Penal Code as amended and is hereby meted the
penalty of reclusion perpetua for each count. Accused-appellant is hereby ordered to pay to private complainant Analia
Orillosa the amount of P50,000.00 by way of civil indemnity and the amount of P50,000.00 by way of moral damages for
each count, or a total amount of P200,000.00.
SO ORDERED.
—--
[G.R. No. 244191. June 3, 2019.]
MARLON BELER y SUALIVIDO @ ALO A.K.A. MARLON BELER y SUALIVIO, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
"G.R. No. 244191 (Marlon Beler y Sualivido @ Alo a.k.a. Marlon Beler y Sualivio vs. People of the Philippines). — This
treats of the Petition for Review on Certiorari 1 under Rule 45 of the Revised Rules of Court filed by herein petitioner
Marlon Beler y Sualivido @ Alo a.k.a. Marlon Beler y Sualivio (Marlon), seeking the reversal of the Decision 2 dated
August 24, 2018 and Resolution 3 dated January 18, 2019, rendered by the Court of Appeals (CA) in CA-G.R. CR No.
40425, convicting him of the crimes of Frustrated Murder and Frustrated Homicide.
The Antecedents
Petitioner Marlon was charged with two (2) counts of Frustrated Murder committed against the brothers Rizalino
Villacarlos (Rizalino) and Raul Villacarlos (Raul), in two separate Informations, committed as follows:
Criminal Case No. 2011-13625-MK
That on or about the 23rd day of July 2011 in the City of Marikina, Philippines and within the Jurisdiction of this Honorable
Court, the above-named accused armed with a long and sharp object with (sic) 10 inches long including the handle, and
by means of Treachery he surprised the complainant from behind, with intent to kill, willfully, unlawfully and feloniously
stab (sic) complainant Rizalino Villacarlos Y Santiago hitting him on side, abdomen and chest, which would ordinarily
cause his death, thus performing all the acts of Execution which would have produced the crime of Murder, as a
consequence thereof, but nevertheless did not produce it by reason of cause, independent of his will, that is due to the
timely and able medical assistance rendered to him that prevented his death.
CONTRARY TO LAW.
Criminal Case No. 2011-13626-MK
That on or about the x x x 23rd day of July 2011 in the City of Marikina, Philippines and within the Jurisdiction of this
Honorable Court, the above-named accused armed with a long and sharp object with (sic) 10 inches long including the
handle, and by means of Treachery he surprised the complainant from behind, with intent to kill, willfully, unlawfully and
feloniously stab [sic] complainant Raul Villacarlos Y Santiago eight times hitting him one on the back, one on the tight
(sic), two on the side and four on the abdomen, which would ordinarily cause his death, thus performing all the acts of
Execution which would have produced the crime of Murder, as a consequence thereof, but nevertheless did not produce it
by reason of cause, independent of his will, that is due to the timely and able medical assistance rendered to him that
prevented his death. CAIHTE
CONTRARY TO LAW. 4 (Emphases in the original)
Marlon pleaded not guilty to the charges. Trial on the merits ensued thereafter. 5
The antecedent facts reveal that at around 11:30 p.m. of July 23, 2011, brothers Raul and Rizalino were walking towards
their home. They noticed several men talking along Gen. Malvar Street in Marikina City. 6
Rizalino walked ahead of Raul. Upon reaching the corner of Gen. Malvar and Molave streets, someone suddenly stabbed
Raul from behind. Raul turned to face his attacker, who stabbed him several times further in his stomach and chest. 7
Rizalino, upon seeing his brother being attacked, intervened and pushed the attacker away from Raul. The attacker
stabbed Rizalino twice. 8
Fearing that the assailant would kill them, Rizalino grabbed the hand of Raul, and they ran away. While they were running,
the attacker pursued them and stabbed Raul at the back. 9
Upon reaching the intersection, a barangay patrol car passed by and brought Raul and Rizalino to the Amang Rodriguez
Memorial Medical Center, where they were treated. 10
While the brothers were confined, the police came and investigated the crime. The police showed the brothers photos of
several men from a rogue gallery. The brothers identified their assailant, who happened to be petitioner Marlon. 11
Marlon vehemently denied the charges leveled against him. He claimed that on July 23, 2011, he slept at around 10:00
p.m. at his home in Gregorio del Pilar Street, Marikina City. He stated that he did not know the brothers personally, and
that he never had any altercations with them. 12
Ruling of the RTC
On July 31, 2017, the Regional Trial Court (RTC) rendered a Joint Decision 13 convicting Marlon of two counts of
frustrated Murder. The dispositive portion of the RTC ruling reads:
WHEREFORE, finding accused [MARLON] GUILTY beyond reasonable doubt of the crime charged in Criminal Case No.
2011-13625-MK, he is hereby sentenced to suffer the indeterminate penalty of imprisonment ranging from Eight (8) years
and One (1) day of Prision mayor, as minimum, to Fourteen (14) years, Eight (8) months and One (1) day of Reclusion
Temporal, as maximum.
The Court likewise finds accused [MARLON] GUILTY beyond reasonable doubt of the crime charged in Criminal Case No.
2011-13626-MK, he is hereby sentenced to suffer the indeterminate penalty of imprisonment ranging from Eight (8) years
and One (1) day of Prision mayor, as minimum, to Fourteen (14) years, Eight (8) months and One (1) day of Reclusion
Temporal, as maximum.
His period of detention shall be fully credited to his [sentence].
Costs against the accused.
SO ORDERED. 14
Aggrieved, Marlon filed an appeal with the CA. In his appeal, he questioned the reliability of the out-of-court identification
made by Raul and Rizalino. He, likewise, argued that the trial court erred in appreciating Treachery in the commission of
the offense. 15
Ruling of the CA
On August 24, 2018, the CA rendered the assailed Decision 16 partially granting Marlon's appeal. DETACa
First, the CA found that the out-of-court identification made by the brothers Raul and Rizalino was valid. Neither was there
any doubt regarding their ability to identify Marlon as their assailant, considering that the place where the crime transpired
was well-lit.
Second, the CA affirmed Marlon's conviction for frustrated Murder under Criminal Case No. 2011-13626-MK. The CA
noted that the attack against Raul was so sudden and unexpected, that the latter had no chance to mount a defense.
However, the CA downgraded the offense in Criminal Case No. 2011-13625-MK to frustrated homicide. The CA found that
Treachery was wanting considering that the attack against Rizalino was not sudden and unexpected. Rizalino intervened
to save his brother Raul, thereby negating the presence of Treachery.
Accordingly, the CA modified the penalty and damages imposed by the RTC, as follows:
WHEREFORE, the appeal is DENIED.
The Decision in Criminal Case No. 2011-13626-MK is AFFIRMED with MODIFICATIONS, in that [Marlon,] who is found
GUILTY beyond reasonable doubt of frustrated Murder and sentenced to suffer the penalty of eight (8) years and one (1)
day of Prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of Reclusion Temporal, as
maximum, is hereby ordered to pay [Raul] the sum of P50,000.00 as Moral damages, P50,000.00 as civil indemnity,
P50,000.00 as Exemplary damages and P25,000.00 as Temperate damages.
The Decision in Criminal Case No. 2011-13625-MK is SET ASIDE. [Marlon] is found GUILTY only of frustrated homicide.
He is sentenced to the indeterminate penalty of four (4) years and two months of Prision correccional as minimum, to
eight (8) years and one day of Prision mayor, as maximum. [Marlon] is ordered to pay [Rizalino] civil indemnity in the
amount of P30,000.00 and Moral damages also in the amount of P30,000.00.
All monetary awards shall earn yearly interest of 6% from the finality of this Decision until full payment.
SO ORDERED. 17 (Citation omitted)
Dissatisfied with the ruling, Marlon filed a Motion for Reconsideration, which was denied by the CA in its Resolution 18
dated January 18, 2019.
Undeterred, Marlon filed the instant Petition for Review on Certiorari under Rule 45 of the Rules of Court.
The Issue
The main issue raised for the Court's resolution rests on whether or not the CA erred in convicting Marlon for the crimes of
frustrated Murder and frustrated homicide.
In his Petition, Marlon seeks exoneration from the charges, raising the same arguments he earlier raised in his appeal
before the CA. He claims that the RTC and the CA erred in giving credence to the out-of-court identification made by the
brothers, 19 and in appreciating the presence of Treachery in the attack committed against Raul. 20 Marlon avers that
Raul's claim that he was suddenly stabbed at the back does not inspire belief, as Raul admitted that Marlon and his group
were exchanging pleasantries when Raul first saw them. Thus, there seems to be a void on Raul's version as to how
Marlon suddenly ended up stabbing him all of a sudden. This holds even more truth considering that they did not have
any grudge against each other. 21 Neither was it proved that the alleged treacherous manner of attack was deliberately or
consciously adopted. 22
Ruling of the Court
The instant petition is bereft of merit.
Article 248 of the Revised Penal Code (RPC) defines the crime of Murder as follows:
ARTICLE 248. Murder. — Any person who, not falling within the provisions of article 246 shall kill another, shall be guilty
of Murder and shall be punished by Reclusion Temporalin its maximum period to death, if committed with any of the
following attendant circumstances: aDSIHc
1. With Treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the
defense or of means or persons to insure or afford impunity. (Emphasis Ours)
Essentially, the elements of Murder are: (i) that a person was killed; (ii) that the accused killed him or her; (iii) that the
killing was attended by any of the qualifying circumstances mentioned in Article 248 of the RPC; and (iv) that the killing is
not Parricideor infanticide. 23
Notably, there is Treachery or alevosia when the offender commits any of the crimes against persons, employing means,
methods or forms which tend directly and specially to ensure its Execution, without risk to himself arising from the defense
which the offended party might make. In order for the Qualifying circumstance of Treacheryto be appreciated, the
following requisites must be shown: (i) the employment of means, method, or manner of Execution which would ensure
the safety of the malefactor from the defensive or retaliatory acts of the victim, no opportunity being given to the latter to
defend himself or to retaliate, and (ii) the means, method, or manner of Executionwas deliberately or consciously adopted
by the offender. 24
Guided by the foregoing, the Court finds that the CA properly appreciated Treachery in Criminal Case No.
2011-13626-MK, which refers to the attack against Raul, and correctly negated Treachery in Criminal Case No.
2011-13625-MK, committed against Rizalino.
In Criminal Case No. 2011-13626-MK, Marlon attacked Raul in a sudden, unexpected and rapid Motion. Raul, who was
walking quietly on his way home, had no inkling that an attack was forthcoming. He was completely unaware of the
imminent peril to his life. In a rapid Motion, Marlon chanced upon Raul, and stabbed him in the back. The attack was so
sudden and unexpected that Raul, who was unarmed, had no chance to mount a defense. The deliberate swiftness of the
attack significantly diminished the risk to Marlon that may be caused by Raul's retaliation. Thus, there can be no denying
that Marlon's attack against Raul reeks of Treachery. 25
The same, however, does not hold true in Criminal Case No. 2011-13625-MK — the attack against Rizalino. ATICcS
The facts show that at the time Marlon suddenly attacked Raul, Rizalino was a few steps ahead of Raul. Rizalino heard
Raul whimpering, which caused the former to turn his back. Upon seeing Raul being stabbed by Marlon, Rizalino
immediately rushed to the aid of Raul and pushed Marlon in an attempt to pacify him. The following exchange reveals how
Rizalino was attacked:
Q: And what did you do upon seeing your brother Raul being stabbed by Marlon?
A: I went near him and I pushed him in order to pacify them, sir.
Q: And what happened next?
A: He moved back a bit but upon seeing me, I was the one he stabbed next, sir.
Q: And on what particular part of your body were you stabbed?
A: On my side, sir (witness pointing to his left side of [his] body). 26
It is evident from the foregoing testimony that the attack against Rizalino was not sudden and unexpected. In fact, Rizalino
had the opportunity to flee and defend himself. In choosing to swoop in, and defend his brother, he was aware of the
impending peril that would befall him.
It cannot be gainsaid that in order for an attack to be regarded as treacherous, it must have come without a warning and
in a swift, deliberate, and unexpected manner, affording the hapless, unarmed, and unsuspecting victim no chance to
resist or escape the sudden blow. 27 The victim's awareness of the peril to his life negates Treachery. 28
In fact, in People v. Casas, 29 a case which bears a striking similarity to the instant case, the Court held that there could
be no Treachery if the victim knew of the impending peril to his life, and was fully aware of the danger he may be faced
with. In Casas, a fistfight ensued between a certain Eligio and therein accused-appellant Casas. Joel, the victim, saw
Casas stab Eligio. Wanting to help Eligio, Joel grabbed a bamboo pole. Unfortunately, however, Joel slipped and fell.
Then, Casas fatally stabbed Joel while the latter lay prostrate on the floor. The Court declared that Treachery could not be
appreciated in the attack against Joel, explaining that: ETHIDa
Under these circumstances, it is the Court's observation that Joel was fully aware of the danger posed in assisting Eligio.
He knew that Casas was armed with a knife and had just used the same on Eligio. Joel elected to intervene, and even
armed himself with a bamboo pole. Accordingly, it is rather obvious that Joel was aware of the danger to his life. Further,
acting in the heat of the moment, and there being no showing that no appreciable interval of time had elapsed from Joel's
mishap to his stabbing so as to allow for the assailant's careful reflection, it does not equally appear that Casas
deliberately adopted means in order to ensure that Joel had no opportunity to defend himself or retaliate. Palpably, Casas
just happened to stab Joel as the latter had just slipped on the floor when the former caught up with him (Joel). Evidently,
this lack of deliberation on the part of Casas, as well as Joel's obvious awareness of the danger to his life, prompts this
Court to discount Treachery as a Qualifying circumstance.
Thus, insofar as the incidents in Crim. Case No. 136842 go, the Court downgrades the conviction to the crime of
Homicide. 30 (Emphasis Ours)
Similarly, in People v. Se, 31 the Court stressed that the essence of Treachery is the sudden, unexpected, and unforeseen
attack on the victim, without the slightest provocation on the latter's part. The victim must not have known the peril he was
exposed to at the moment of the attack. Should it appear, however, that the victim was forewarned of the danger he was
in and, instead of fleeing from it, he met it and was killed as a result, then the Qualifying circumstance of Treacherycannot
be appreciated. 32 As eloquently stated by the Court in People v. Mantes, 33 "there is no Treachery where the victim was
aware of the danger to his life; when he chose to be courageous instead of cautious." 34
Equally important, in assessing whether Treachery attended the commission of the offense, the Court, in People v.
Escarlos, 35 warned that any doubt as to the existence of Treachery must be resolved in favor of the accused. 36
Based on the foregoing, it becomes all too apparent that the attack against Rizalino was in no way treacherous, inasmuch
as the obvious danger he faced was in no way sudden, unexpected, or unforeseen.
The Crimes Were Properly Regarded as Having Been Committed in the Frustrated Stage
The RTC and the CA correctly ruled that the crimes were committed in the frustrated stage.
In Serrano v. People, 37 the Court characterized a frustrated felony as one wherein the offender has performed all the
acts of Execution which should produce the felony as a consequence, and the reason for the non-accomplishment of the
crime is some cause independent of the will of the perpetrator. 38 "The crucial point to consider is the nature of the wound
inflicted which must be supported by independent proof showing that the wound inflicted was sufficient to cause the
victim's death without timely medical intervention." 39
The prosecution sufficiently established that the victims survived because of timely medical intervention. Notably, the
records show that Raul and Rizalino were treated for "acute abdomen secondary to multiple stab wounds." 40 In medical
terms, this meant that the patients must be immediately operated on. In fact, Dr. Farrah Mae Salvani, the physician who
operated on Raul and Rizalino, testified that the numerous wounds sustained by the brothers would have been fatal, if
they were not immediately operated on. She stressed that the brothers would have died without proper and immediate
medical intervention. 41
The Out-of-Court Identification Made by Raul and Rizalino Pointing to Marlon as the Assailant Was Valid and Credible
Remarkably, in assessing the admissibility and credibility of the out-of-court identification of suspects, courts have adopted
the totality of circumstances test, where they consider the following factors, viz.:
(1) the witness' opportunity to view the criminal at the time of the crime; (2) the witness' degree of attention at that time; (3)
the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the
identification; (5) the length of time between the crime and the identification; and, (6) the suggestiveness of the
identification procedure.
More specifically, for out-of-court identifications made through photographs, the Court, in People of the Philippines v.
Antonio Llamera y Atienza, 43 laid down the guidelines for ensuring the reliability of the victim's identification: first, a
series of photographs must be shown and not merely that of the suspect; second, the arrangement and display of the
photographs should in no way suggest which one of the pictures pertains to the suspect; and third, the photographic
identification should be free from any impermissible suggestions that would single out a person to the attention of the
witness making the identification.
In the case at bar, the procedure employed by the police was in accordance with the above-mentioned guidelines. Raul
and Rizalino were shown a set of photos, from which to identify their attacker. The police investigator simply asked them if
they could identify their assailant from the gallery. The investigator watched passively, while Raul and Rizalino scoured
through the photos. Likewise, the identification was done on separate occasions since Raul and Rizalino were separated
by a curtain during their confinement in the hospital.
Suffice to say, there can be no doubt as to Raul's and Rizalino's ability to remember the face of their attacker, who they
clearly saw from the illumination provided by the Meralco lamppost. 46 This allowed them to, likewise, accurately describe
how Marlon looked and what he was wearing. Moreover, the trial court regarded the brothers' testimonies as credible and
trustworthy. There was no reason for them to falsely impute a crime against Marlon. In fact, Marlon never ascribed any
ill-motive against them.
It is well-settled that when the credibility of a witness is in issue, the findings of fact of the trial court, its calibration of the
testimonies of the Witnesses and its assessment of the probative weight thereof, are accorded high respect, if not
conclusive effect; more so, when such findings are affirmed by the appellate court. Absent any clear showing that the trial
court and the appellate court overlooked, misunderstood or misapplied some facts or circumstances of weight and
substance, this rule on the assessment of a witness' credibility should not be disturbed.
Based on all the foregoing, Marlon's weak and self-serving defenses of denial and Alibicertainly falter against the positive
identification made by Raul and Rizalino. It must be remembered that for an Alibi to prosper, it must be shown that it was
physically impossible for the accused to be at the scene of the crime. This was not established in the case at bar.
The Proper Penalty and Pecuniary Liability for Criminal Case No. 2011-13626-MK for Frustrated Murder
Significantly, Article 50 of the RPC states that "[t]he penalty next lower in degree than that prescribed by law for the
consummated felony shall be imposed upon the principal in a frustrated felony."
In line with this, Article 248 of the RPC, as amended by Republic Act No. 7659, 48 provides that the penalty for Murder
shall be Reclusion Perpetua. Thus, the imposable penalty for frustrated Murder shall be Reclusion Temporal.
Furthermore, applying the Indeterminate Sentence Law, an indeterminate sentence shall be imposed, consisting of a
maximum term, which is the penalty under the RPC properly imposed after considering any attending circumstance; while
the minimum term is within the range of the penalty next lower than that prescribed by the RPC for the offense committed.
49 Accordingly, the CA correctly imposed the penalty of eight (8) years and one (1) day of Prision mayor, as minimum, to
fourteen (14) years, eight (8) months and one (1) day of Reclusion Temporal, as maximum, for frustrated Murder.
Similarly, the CA correctly ordered the payment of the following amounts of damages — P50,000.00 as Moral damages,
P50,000.00 as civil indemnity, P50,000.00 as Exemplary damages. SDAaTC
However, the Court finds that the CA erred in ordering the payment of Temperate damages for the medical expenses
incurred by Raul. In the landmark case of People v. Jugueta, 50 the Court stated that Temperate damages may be
awarded only "when no documentary Evidence of burial or funeral expenses is presented in court, the amount of
P50,000.00 as Temperate damages shall be awarded." 51
The Proper Penalty and Pecuniary Liability for Criminal Case No. 2011-13625-MK for Frustrated Homicide
Article 249 of the RPC provides that the imposable penalty for homicide is Reclusion Temporal. However, considering that
the crime committed is merely frustrated homicide, then, the imposable penalty shall be the penalty next lower in degree
than Reclusion Temporal, which is Prision mayor.
Applying the Indeterminate Sentence Law, and there being no aggravating or mitigating circumstances present in this
case, the minimum penalty to be meted on Marlon should be anywhere within the range of six (6) months and one (1) day
to six (6) years of Prision correccional, as minimum, to anywhere between the medium period of Prision mayor ranging
from eight (8) years and one (1) day to ten (10) years. Thus, the imposition by the CA of an indeterminate sentence of four
(4) years and two (2) months of Prision correccional, as minimum, to eight (8) years and one day of Prision mayor, as
maximum, was correct.
Likewise, the amount of damages awarded by the CA, which consist of P30,000.00 as civil indemnity and P30,000.00 as
Moral damages, is in accordance with the case of Jugueta. As ruled, there shall be no award of Exemplary damages
unless an aggravating circumstance was proven during the trial, which is not applicable in the case at bar. 52
Finally, all amounts due to the victims shall earn a legal interest of six percent (6%) per annum from the date of finality of
this Resolution until full satisfaction.
WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The Decision dated August 24, 2018
and Resolution dated January 18, 2019, rendered by the Court of Appeals in CA-G.R. CR No. 40425 are AFFIRMED with
modification by DELETING the award of Temperate damages granted by the Court of Appeals in Criminal Case No.
2011-13626-MK for Frustrated Murder.
All other awards are AFFIRMED.
SO ORDERED."
—--
G.R. No. 182748 December 13, 2011
ARNEL COLINARES, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES,Respondent.
DECISION
ABAD, J.:
This case is about a) the need, when invoking self-defense, to prove all that it takes; b) what distinguishes frustrated
homicide from attempted homicide; and c) when an accused who appeals may still apply for probation on remand of the
case to the trial court.
The Facts and the Case
The public prosecutor of Camarines Sur charged the accused Arnel Colinares (Arnel) with frustrated homicide before the
Regional Trial Court (RTC) of San Jose, Camarines Sur, in Criminal Case T-2213.1
Complainant Rufino P. Buena (Rufino) testified that at around 7:00 in the evening on June 25, 2000, he and Jesus Paulite
(Jesus) went out to buy cigarettes at a nearby store. On their way, Jesus took a leak by the roadside with Rufino waiting
nearby. From nowhere, Arnel sneaked behind and struck Rufino twice on the head with a huge stone, about 15 ½ inches
in diameter. Rufino fell unconscious as Jesus fled.
Ananias Jallores (Ananias) testified that he was walking home when he saw Rufino lying by the roadside. Ananias tried to
help but someone struck him with something hard on the right temple, knocking him out. He later learned that Arnel had
hit him.
Paciano Alano (Paciano) testified that he saw the whole incident since he happened to be smoking outside his house. He
sought the help of a barangay tanod and they brought Rufino to the hospital.
Dr. Albert Belleza issued a Medico-Legal Certificate2 showing that Rufino suffered two lacerated wounds on the forehead,
along the hairline area. The doctor testified that these injuries were serious and potentially fatal but Rufino chose to go
home after initial treatment.
The defense presented Arnel and Diomedes Paulite (Diomedes). Arnel claimed self-defense. He testified that he was on
his way home that evening when he met Rufino, Jesus, and Ananias who were all quite drunk. Arnel asked Rufino where
he supposed the Mayor of Tigaon was but, rather than reply, Rufino pushed him, causing his fall. Jesus and Ananias then
boxed Arnel several times on the back. Rufino tried to stab Arnel but missed. The latter picked up a stone and, defending
himself, struck Rufino on the head with it. When Ananias saw this, he charged towards Arnel and tried to stab him with a
gaff. Arnel was able to avoid the attack and hit Ananias with the same stone. Arnel then fled and hid in his sister’s house.
On September 4, 2000, he voluntarily surrendered at the Tigaon Municipal Police Station.
Diomedes testified that he, Rufino, Jesus, and Ananias attended a pre-wedding party on the night of the incident. His
three companions were all drunk. On his way home, Diomedes saw the three engaged in heated argument with Arnel.
On July 1, 2005 the RTC rendered judgment, finding Arnel guilty beyond reasonable doubt of frustrated homicide and
sentenced him to suffer imprisonment from two years and four months of prision correccional, as minimum, to six years
and one day of prision mayor, as maximum. Since the maximum probationable imprisonment under the law was only up to
six years, Arnel did not qualify for probation.
Arnel appealed to the Court of Appeals (CA), invoking self-defense and, alternatively, seeking conviction for the lesser
crime of attempted homicide with the consequent reduction of the penalty imposed on him. The CA entirely affirmed the
RTC decision but deleted the award for lost income in the absence of evidence to support it.3 Not satisfied, Arnel comes to
this Court on petition for review.
In the course of its deliberation on the case, the Court required Arnel and the Solicitor General to submit their respective
positions on whether or not, assuming Arnel committed only the lesser crime of attempted homicide with its imposable
penalty of imprisonment of four months of arresto mayor, as minimum, to two years and four months of prision
correccional, as maximum, he could still apply for probation upon remand of the case to the trial court.
Both complied with Arnel taking the position that he should be entitled to apply for probation in case the Court metes out a
new penalty on him that makes his offense probationable. The language and spirit of the probation law warrants such a
stand. The Solicitor General, on the other hand, argues that under the Probation Law no application for probation can be
entertained once the accused has perfected his appeal from the judgment of conviction.
The Issues Presented
The case essentially presents three issues:
1. Whether or not Arnel acted in self-defense when he struck Rufino on the head with a stone;
2. Assuming he did not act in self-defense, whether or not Arnel is guilty of frustrated homicide; and
3. Given a finding that Arnel is entitled to conviction for a lower offense and a reduced probationable penalty, whether or
not he may still apply for probation on remand of the case to the trial court.
The Court’s Rulings
One. Arnel claims that Rufino, Jesus, and Ananias attacked him first and that he merely acted in self-defense when he hit
Rufino back with a stone.
When the accused invokes self-defense, he bears the burden of showing that he was legally justified in killing the victim or
inflicting injury to him. The accused must establish the elements of self-defense by clear and convincing evidence. When
successful, the otherwise felonious deed would be excused, mainly predicated on the lack of criminal intent of the
accused.4
In homicide, whether consummated, frustrated, or attempted, self-defense requires (1) that the person whom the offender
killed or injured committed unlawful aggression; (2) that the offender employed means that is reasonably necessary to
prevent or repel the unlawful aggression; and (3) that the person defending himself did not act with sufficient provocation.5
If the victim did not commit unlawful aggression against the accused, the latter has nothing to prevent or repel and the
other two requisites of self-defense would have no basis for being appreciated. Unlawful aggression contemplates an
actual, sudden, and unexpected attack or an imminent danger of such attack. A mere threatening or intimidating attitude is
not enough. The victim must attack the accused with actual physical force or with a weapon.6
Here, the lower courts found that Arnel failed to prove the element of unlawful aggression. He alone testified that Jesus
and Ananias rained fist blows on him and that Rufino and Ananias tried to stab him. No one corroborated Arnel’s
testimony that it was Rufino who started it. Arnel’s only other witness, Diomedes, merely testified that he saw those
involved having a heated argument in the middle of the street. Arnel did not submit any medical certificate to prove his
point that he suffered injuries in the hands of Rufino and his companions.7
In contrast, the three witnesses—Jesus, Paciano, and Ananias—testified that Arnel was the aggressor. Although their
versions were mottled with inconsistencies, these do not detract from their core story. The witnesses were one in what
Arnel did and when and how he did it. Compared to Arnel’s testimony, the prosecution’s version is more believable and
consistent with reality, hence deserving credence.8
Two. But given that Arnel, the accused, was indeed the aggressor, would he be liable for frustrated homicide when the
wounds he inflicted on Rufino, his victim, were not fatal and could not have resulted in death as in fact it did not?
The main element of attempted or frustrated homicide is the accused’s intent to take his victim’s life. The prosecution has
to prove this clearly and convincingly to exclude every possible doubt regarding homicidal intent.9 And the intent to kill is
often inferred from, among other things, the means the offender used and the nature, location, and number of wounds he
inflicted on his victim.10
Here, Arnel struck Rufino on the head with a huge stone. The blow was so forceful that it knocked Rufino out. Considering
the great size of his weapon, the impact it produced, and the location of the wounds that Arnel inflicted on his victim, the
Court is convinced that he intended to kill him.
The Court is inclined, however, to hold Arnel guilty only of attempted, not frustrated, homicide. In Palaganas v. People,11
we ruled that when the accused intended to kill his victim, as shown by his use of a deadly weapon and the wounds he
inflicted, but the victim did not die because of timely medical assistance, the crime is frustrated murder or frustrated
homicide. If the victim’s wounds are not fatal, the crime is only attempted murder or attempted homicide.
Thus, the prosecution must establish with certainty the nature, extent, depth, and severity of the victim’s wounds. While
Dr. Belleza testified that "head injuries are always very serious,"12 he could not categorically say that Rufino’s wounds in
this case were "fatal." Thus:
Q: Doctor, all the injuries in the head are fatal?
A: No, all traumatic injuries are potentially treated.
Q: But in the case of the victim when you treated him the wounds actually are not fatal on that very day?
A: I could not say, with the treatment we did, prevent from becoming fatal. But on that case the patient preferred
to go home at that time.
Q: The findings also indicated in the medical certificate only refers to the length of the wound not the depth of the
wound?
A: When you say lacerated wound, the entire length of the layer of scalp.
Q: So you could not find out any abrasion?
A: It is different laceration and abrasion so once the skin is broken up the label of the frontal lo[b]e, we always
call it lacerated wound, but in that kind of wound, we did not measure the depth.13
Indeed, Rufino had two lacerations on his forehead but there was no indication that his skull incurred fracture or that he
bled internally as a result of the pounding of his head. The wounds were not so deep, they merely required suturing, and
were estimated to heal in seven or eight days. Dr. Belleza further testified:
Q: So, in the medical certificate the wounds will not require surgery?
A: Yes, Madam.
Q: The injuries are slight?
A: 7 to 8 days long, what we are looking is not much, we give antibiotics and antit[e]tanus – the problem the
contusion that occurred in the brain.
xxxx
Q: What medical intervention that you undertake?
A: We give antibiotics, Your Honor, antit[e]tanus and suturing the wounds.

Q: For how many days did he stay in the hospital?
A: Head injury at least be observed within 24 hours, but some of them would rather go home and then come
back.
Q: So the patient did not stay 24 hours in the hospital?
A: No, Your Honor.
Q: Did he come back to you after 24 hours?
A: I am not sure when he came back for follow-up.14
Taken in its entirety, there is a dearth of medical evidence on record to support the prosecution’s claim that Rufino would
have died without timely medical intervention. Thus, the Court finds Arnel liable only for attempted homicide and entitled
to the mitigating circumstance of voluntary surrender.
Three. Ordinarily, Arnel would no longer be entitled to apply for probation, he having appealed from the judgment of the
RTC convicting him for frustrated homicide.
But, the Court finds Arnel guilty only of the lesser crime of attempted homicide and holds that the maximum of the penalty
imposed on him should be lowered to imprisonment of four months of arresto mayor, as minimum, to two years and four
months of prision correccional, as maximum. With this new penalty, it would be but fair to allow him the right to apply for
probation upon remand of the case to the RTC.
Some in the Court disagrees. They contend that probation is a mere privilege granted by the state only to qualified
convicted offenders. Section 4 of the probation law (PD 968) provides: "That no application for probation shall be
entertained or granted if the defendant has perfected the appeal from the judgment of conviction."15 Since Arnel appealed
his conviction for frustrated homicide, he should be deemed permanently disqualified from applying for probation.
But, firstly, while it is true that probation is a mere privilege, the point is not that Arnel has the right to such privilege; he
certainly does not have. What he has is the right to apply for that privilege. The Court finds that his maximum jail term
should only be 2 years and 4 months. If the Court allows him to apply for probation because of the lowered penalty, it is
still up to the trial judge to decide whether or not to grant him the privilege of probation, taking into account the full
circumstances of his case.
Secondly, it is true that under the probation law the accused who appeals "from the judgment of conviction" is disqualified
from availing himself of the benefits of probation. But, as it happens, two judgments of conviction have been meted out to
Arnel: one, a conviction for frustrated homicide by the regional trial court, now set aside; and, two, a conviction for
attempted homicide by the Supreme Court.
If the Court chooses to go by the dissenting opinion’s hard position, it will apply the probation law on Arnel based on the
trial court’s annulled judgment against him. He will not be entitled to probation because of the severe penalty that such
judgment imposed on him. More, the Supreme Court’s judgment of conviction for a lesser offense and a lighter penalty will
also have to bend over to the trial court’s judgment—even if this has been found in error. And, worse, Arnel will now also
be made to pay for the trial court’s erroneous judgment with the forfeiture of his right to apply for probation. Ang kabayo
ang nagkasala, ang hagupit ay sa kalabaw (the horse errs, the carabao gets the whip). Where is justice there?
The dissenting opinion also expresses apprehension that allowing Arnel to apply for probation would dilute the ruling of
this Court in Francisco v. Court of Appeals16that the probation law requires that an accused must not have appealed his
conviction before he can avail himself of probation. But there is a huge difference between Francisco and this case.
In Francisco, the Metropolitan Trial Court (MeTC) of Makati found the accused guilty of grave oral defamation and
sentenced him to a prison term of one year and one day to one year and eight months of prision correccional, a clearly
probationable penalty. Probation was his to ask! Still, he chose to appeal, seeking an acquittal, hence clearly waiving his
right to apply for probation. When the acquittal did not come, he wanted probation. The Court would not of course let him.
It served him right that he wanted to save his cake and eat it too. He certainly could not have both appeal and probation.
The Probation Law, said the Court in Francisco, requires that an accused must not have appealed his conviction before
he can avail himself of probation. This requirement "outlaws the element of speculation on the part of the accused—to
wager on the result of his appeal—that when his conviction is finally affirmed on appeal, the moment of truth well-nigh at
hand, and the service of his sentence inevitable, he now applies for probation as an ‘escape hatch’ thus rendering
nugatory the appellate court’s affirmance of his conviction."17
Here, however, Arnel did not appeal from a judgment that would have allowed him to apply for probation. He did not have
a choice between appeal and probation. He was not in a position to say, "By taking this appeal, I choose not to apply for
probation." The stiff penalty that the trial court imposed on him denied him that choice. Thus, a ruling that would allow
Arnel to now seek probation under this Court’s greatly diminished penalty will not dilute the sound ruling in Francisco. It
remains that those who will appeal from judgments of conviction, when they have the option to try for probation, forfeit
their right to apply for that privilege.
Besides, in appealing his case, Arnel raised the issue of correctness of the penalty imposed on him. He claimed that the
evidence at best warranted his conviction only for attempted, not frustrated, homicide, which crime called for a
probationable penalty. In a way, therefore, Arnel sought from the beginning to bring down the penalty to the level where
the law would allow him to apply for probation.
In a real sense, the Court’s finding that Arnel was guilty, not of frustrated homicide, but only of attempted homicide, is an
original conviction that for the first time imposes on him a probationable penalty. Had the RTC done him right from the
start, it would have found him guilty of the correct offense and imposed on him the right penalty of two years and four
months maximum.lavvphil This would have afforded Arnel the right to apply for probation.
The Probation Law never intended to deny an accused his right to probation through no fault of his. The underlying
philosophy of probation is one of liberality towards the accused. Such philosophy is not served by a harsh and stringent
interpretation of the statutory provisions.18 As Justice Vicente V. Mendoza said in his dissent in Francisco, the Probation
Law must not be regarded as a mere privilege to be given to the accused only where it clearly appears he comes within its
letter; to do so would be to disregard the teaching in many cases that the Probation Law should be applied in favor of the
accused not because it is a criminal law but to achieve its beneficent purpose.19
One of those who dissent from this decision points out that allowing Arnel to apply for probation after he appealed from
the trial court’s judgment of conviction would not be consistent with the provision of Section 2 that the probation law
should be interpreted to "provide an opportunity for the reformation of a penitent offender." An accused like Arnel who
appeals from a judgment convicting him, it is claimed, shows no penitence.
This may be true if the trial court meted out to Arnel a correct judgment of conviction. Here, however, it convicted Arnel of
the wrong crime, frustrated homicide, that carried a penalty in excess of 6 years. How can the Court expect him to feel
penitent over a crime, which as the Court now finds, he did not commit? He only committed attempted homicide with its
maximum penalty of 2 years and 4 months.
Ironically, if the Court denies Arnel the right to apply for probation under the reduced penalty, it would be sending him
straight behind bars. It would be robbing him of the chance to instead undergo reformation as a penitent offender,
defeating the very purpose of the probation law.
At any rate, what is clear is that, had the RTC done what was right and imposed on Arnel the correct penalty of two years
and four months maximum, he would have had the right to apply for probation. No one could say with certainty that he
would have availed himself of the right had the RTC done right by him. The idea may not even have crossed his mind
precisely since the penalty he got was not probationable.
The question in this case is ultimately one of fairness. Is it fair to deny Arnel the right to apply for probation when the new
penalty that the Court imposes on him is, unlike the one erroneously imposed by the trial court, subject to probation?
WHEREFORE, the Court PARTIALLY GRANTS the petition, MODIFIES the Decision dated July 31, 2007 of the Court of
Appeals in CA-G.R. CR 29639, FINDS petitioner Arnel Colinares GUILTY beyond reasonable doubt of attempted
homicide, and SENTENCES him to suffer an indeterminate penalty from four months of arresto mayor, as minimum, to
two years and four months of prision correccional, as maximum, and to pay Rufino P. Buena the amount of ₱20,000.00 as
moral damages, without prejudice to petitioner applying for probation within 15 days from notice that the record of the
case has been remanded for execution to the Regional Trial Court of San Jose, Camarines Sur, in Criminal Case T-2213.
SO ORDERED.
—---
[ G.R. No. 193169, April 06, 2015 ]
ROGELIO ROQUE, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

Petitioner Rogelio Roque (petitioner) was charged with the crime of frustrated homicide in an Information that reads as
follows:
That on or about the 22nd day of November, 2001, in the municipality of Pandi, province of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully, and
feloniously, with intent to kill[,] attack, assault and shoot with a gun complain[an]t Reynaldo Marquez, hitting the latter on
his right ear and nape, and kick[ing] him on the face and back, causing serious physical injuries which ordinarily would
have caused the death of the said Reynaldo Marquez, thus, performing all the acts of execution which should have
produced the crime of homicide as a consequence, but nevertheless did not produce it by reason of causes independent
of his will, that is[,] by the timely and able medical attendance rendered to said Reynaldo Marquez which prevented his
death.
CONTRARY TO LAW. [1]
When arraigned on March 23, 2003, petitioner pleaded “not guilty.” During the pre-trial conference, the defense admitted
the identity of petitioner; that he is a Kagawad of BarangayMasagana, Pandi, Bulacan; and that the day of the incident,
November 22, 2001 was the Thanksgiving Day of the said barangay. Trial thereafter ensued where the parties presented
their respective versions of the incident.
The prosecution averred that on November 22, 2001, while brothers Reynaldo Marquez (Reynaldo) and Rodolfo Marquez
(Rodolfo) were in the house of Bella Salvador-Santos (Bella) in Pandi, Bulacan, Rodolfo spotted Rogelio dela Cruz (dela
Cruz) and shouted to him to join them. At that instant, petitioner and his wife were passing-by on board a tricycle.
Believing that Rodolfo’s shout was directed at him, petitioner stopped the vehicle and cursed the former. Reynaldo
apologized for the misunderstanding but petitioner was unyielding. Before leaving, he warned the Marquez brothers that
something bad would happen to them if they continue to perturb him.
Bothered, Rodolfo went to the house of Barangay Chairman Pablo Tayao (Tayao) to ask for assistance in settling the
misunderstanding. Because of this, Reynaldo, who had already gone home, was fetched by dela Cruz and brought to the
house of Tayao. But since Tayao was then no longer around, Reynaldo just proceeded to petitioner’s house to follow
Tayao and Rodolfo who had already gone ahead. Upon arriving at petitioner’s residence, Reynaldo again apologized to
petitioner but the latter did not reply. Instead, petitioner entered the house and when he came out, he was already holding
a gun which he suddenly fired at Reynaldo who was hit in his right ear. Petitioner then shot Reynaldo who fell to the
ground after being hit in the nape. Unsatisfied, petitioner kicked Reynaldo on the face and back. Reynaldo pleaded
Tayao for help but to no avail since petitioner warned those around not to get involved. Fortunately, Reynaldo’s parents
arrived and took him to a local hospital for emergency medical treatment. He was later transferred to Jose Reyes
Memorial Hospital in Manila where he was operated on and confined for three weeks. Dr. Renato Raymundo attended to
him and issued a medical certificate stating that a bullet entered the base of Reynaldo’s skull and exited at the back of his
right ear.
Presenting a totally different version, the defense claimed that on November 22, 2001, petitioner went to the house of
Bella on board a tricycle to fetch his child. While driving, he was cursed by brothers Reynaldo and Rodolfo who were
visibly intoxicated. Petitioner ignored the two and just went home. Later, however, the brothers appeared in front of his
house still shouting invectives against him. Petitioner’s brother tried to pacify Rodolfo and Reynaldo who agreed to leave
but not without threatening that they would return to kill him. Petitioner thus asked someone to call Tayao. Not long after,
the brothers came back, entered petitioner’s yard, and challenged him to a gun duel. Petitioner requested Tayao to stop
and pacify them but Reynaldo refused to calm down and instead fired his gun. Hence, as an act of self-defense,
petitioner fired back twice.
On March 12, 2007, the Regional Trial Court (RTC) of Malolos, Bulacan, Branch 84, rendered its Decision[2] finding
petitioner guilty as charged, viz:
WHEREFORE, finding the accused GUILTY beyond reasonable doubt of the crime charged in the information, he is
hereby sentenced to suffer the penalty of imprisonment of six (6) years [of] prision correccional, as minimum[;] to ten
(10) years of prision mayor in its medium [period], as maximum.
SO ORDERED.[3]
Petitioner filed a motion for reconsideration which was denied in an Order[4] dated August 16, 2007.
Undaunted, petitioner appealed to the Court of Appeals (CA). In its Decision[5] dated February 27, 2009, the CA affirmed in
full the RTC’s Decision, thus:
WHEREFORE, in the light of the foregoing premises, the decision appealed from is hereby AFFIRMED in its entirety.
SO ORDERED.[6]
Petitioner’s Motion for Reconsideration[7]thereto was likewise denied in a Resolution[8]dated July 30, 2010.
Hence, this Petition for Review on Certiorari[9]under Rule 45 of the Rules of Court where petitioner imputes upon the CA
the following errors:
1. THE HONORABLE COURT OF APPEALS ERRONEOUSLY APPRECIATED THE FACTS AND EVIDENCE ON
RECORD WHEN IT RULED THAT THE ELEMENT OF UNLAWFUL AGGRESSION WAS NOT
SATISFACTORILY PROVEN SINCE THE ACCUSED-APPELLANT HAS NOT SATISFACTORILY SHOWN
THAT THE VICTIM/PRIVATE COMPLAINANT WAS INDEED ARMED WITH A GUN.
2. THE HONORABLE COURT OF APPEALS ERRONEOUSLY APPRECIATED THE FACTS AND EVIDENCE ON
RECORD WHEN IT RULED THAT GRANTING FOR THE BENEFIT OF ARGUMENT THAT THERE WAS
INDEED UNLAWFUL AGGRESSION, PETITIONER WAS NO LONGER JUSTIFIED IN FIRING AT THE
VICTIM/PRIVATE COMPLAINANT FOR THE SECOND TIME.
3. THE HONORABLE COURT OF APPEALS ERRONEOSULY APPRECIATED THE FACTS AND EVIDENCE ON
RECORD WHEN IT RULED THAT INTENT TO KILL ON THE PART OF PETITIONER WAS PRESENT
CONSIDERING: (A) THE PRIVATE COMPLAINANT ALLEGEDLY RECEIVED TWO GUNSHOT WOUNDS,
AND (B) THE PETITIONER PREVENTED BARANGAY OFFICIALS FROM INTERVENING AND HELPING OUT
THE WOUNDED PRIVATE COMPLAINANT.[10]
Our Ruling
The Petition must be denied.
The errors petitioner imputes upon the CA all pertain to “appreciation of evidence” or factual errors which are not within
the province of a petition for review on certiorariunder Rule 45. The Court had already explained in Batistis v. People[11]
that:
Pursuant to Section 3, Rule 122, and Section 9, Rule 45, of the Rules of Court,the review on appeal of a decision in a
criminal case, wherein the CA imposes a penalty other than death, reclusion perpetua, or life imprisonment, is by
petition for review on certiorari.
A petition for review on certiorari raises only questions of law. Sec. 1, Rule 45, Rules of Court, explicitly so provides, viz:
Section 1. Filing of petition with Supreme Court. – A party desiring to appeal by certiorari from a judgment, final order
or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other
courts, whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The
petition may include an application for a writ of preliminary injunction or other provisional remedies and shall raise
only questions of law, which must be distinctly set forth. The petitioner may seek the same provisional remedies
by verified motion filed in the same action or proceeding at any time during its pendency.
Petitioner’s assigned errors, requiring as they do a re-appreciation and re-examination of the evidence, are evidentiary
and factual in nature.[12] The Petition must therefore be denied on this basis because “one, the petition for review thereby
violates the limitation of the issues to only legal questions, and, two, the Court, not being a trier of facts, will not disturb the
factual findings of the CA, unless they were mistaken, absurd, speculative, conflicting, tainted with grave abuse of
discretion, or contrary to the findings reached by the court of origin,”[13] which was not shown to be the case here.
Besides, findings of facts of the RTC, its calibration of the testimonial evidence, its assessment of the probative weight
thereof, as well as its conclusions anchored on the said findings, are accorded high respect if not conclusive effect when
affirmed by the CA,[14]as in this case. After all, the RTC “had the opportunity to observe the witnesses on the stand and
detect if they were telling the truth.”[15] “To [thus] accord with the established doctrine of finality and bindingness of the trial
court’s findings of fact, [the Court shall] not disturb [the] findings of fact of the RTC, particularly after their affirmance by
the CA”[16] as petitioner was not able to sufficiently establish any extraordinary circumstance which merits a departure from
the said doctrine.[17]
In any event, the Court observes that the CA correctly affirmed the RTC’s ruling that petitioner is guilty of frustrated
homicide and not merely of less serious physical injuries as the latter insists. As aptly stated by the CA:
In attempted or frustrated homicide, the offender must have the intent to kill the victim. If there is no intent to kill on the
part of the offender, he is liable for physical injuries only. Vice-versa, regardless of whether the victim only suffered
injuries that would have healed in nine to thirty days, if intent to kill is sufficiently borne out, the crime committed is
frustrated homicide (Arts. 263-266).
Usually, the intent to kill is shown by the kind of weapon used by the offender and the parts of the victim’s body at which
the weapon was aimed, as shown by the wounds inflicted. Hence, when a deadly weapon, like a bolo, is used to stab
the victim in the latter’s abdomen, the intent to kill can be presumed (Reyes, The Revised Penal Code, 13TH ED., P.
431).
It is worth highlighting that the victim received two gunshot wounds in the head. Indeed the location of the wounds plus
the nature of the weapon used are ready indications that the accused-appellant’s objective is not merely to warn or
incapacitate a supposed aggressor. Verily, had the accused-appellant been slightly better with his aim, any of the two
bullets surely would have killed him outright. Also, the intent to kill is further exhibited by the fact that the
accused-appellant even prevented barangay officials from intervening and helping x x x the bleeding victim. Indeed, the
fact that Reynaldo Marquez was miraculously able to live through the ordeal and sustain only modicum injuries does not
mean that the crime ought to be downgraded from frustrated homicide to less serious physical injuries. After all, as was
mentioned above, what should be determinative of the crime is not the gravity of the resulting injury but the criminal
intent that animated the hand that pulled the trigger.[18]
The Court, however, notes that while the penalty imposed upon appellant is also proper, there is a need to modify the
assailed CA Decision in that awards of damages must be made in favor of the victim Reynaldo.
The RTC and the CA correctly held that actual damages cannot be awarded to Reynaldo due to the absence of receipts to
prove the medical expenses he incurred from the incident. “Nonetheless, absent competent proof on the actual damages
suffered, a party still has the option of claiming temperate damages, which may be allowed in cases where, from the
nature of the case, definite proof of pecuniary loss cannot be adduced although the court is convinced that the aggrieved
party suffered some pecuniary loss.”[19] Since it was undisputed that Reynaldo was hospitalized due to the gunshot
wounds inflicted by petitioner, albeit as observed by the RTC there was no evidence offered as to the expenses he
incurred by reason thereof, Reynaldo is entitled to temperate damages in the amount of P25,000.00. Aside from this, he
is also entitled to moral damages of P25,000.00. These awards of damages are in accordance with settled
jurisprudence.[20] An interest at the legal rate of 6% per annum must also be imposed on the awarded damages to
commence from the date of finality of this Resolution until fully paid.[21]
WHEREFORE, the Petition is DENIED. The Decision dated February 27, 2009 of the Court of Appeals in CA-G.R. CR
No. 31084 affirming in its entirety the March 12, 2007 Decision of the Regional Trial Court of Malolos, Bulacan, Branch 84
in Criminal Case No. 3486-M-2002 convicting petitioner Rogelio Roque of the crime of frustrated homicide, is AFFIRMED
with the MODIFICATION that the petitioner is ordered to pay the victim Reynaldo Marquez moral damages and
temperate damages in the amount of P25,000,00 each, with interest at the legal rate of 6% per annum from the date of
finality of this Resolution until fully paid.
SO ORDERED.

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G.R. No.

L-43530 August 3, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

G.R. Nos. 143468-71 January 24, 2003

THE PEOPLE OF THE PHILIPPINES,plaintiff-appellee,

CALLEJO, SR., J.:

xxx xxx xxx

xxx xxx xxx

xxx xxx xxx

II. Evidence of the Prosecution5

No extragenital physical injuries noted.

III. The Defenses and Evidence of Accused-Appellant

IV. The Verdict

V. Assigned Errors of the Trial Court

xxx xxx xxx

VI. Findings of the Court

He laid himself on top of me, sir.

Q What did he do while he was on top of you?

A His organ, sir.

Q Where did he place his organ?

A In my organ, sir. (sa ari ko po.)

Q At this very juncture madam witness, what did you feel?

Q In between 1996 and August 1997?

A Yes, sir, sometimes two (2) times a week.

Q What was this unusual experience of yours?

A He laid himself on top of me, sir.

Q You said "he" whom are you referring to?

A Freedie Lizada Jakosalem, sir.

Q What else if any madam witness?

A He was also touching my sex organ, sir.

Q What else, if any?

None else, sir.

Your Honor, that is —

I will re-propound the question, your honor.

With his hands, sir.

On cross-examination, the private complainant testified, thus:

Q Who was that somebody who entered the room?

A My stepfather Freedie Lizada, sir.

A Yes, sir, he was dressed then, sir.

Q And he had his pants on, is that correct?

A He was wearing a short pants, sir.

Q Was it a T-shirt that he had, at that time or a polo shirt?

A He was not wearing any shirt then, sir, he was naked.

A No, sir, I was not afraid.

Q He was holding you, where were you when he held you?

A I was in the bed, sir, lying down.

Q You were lying down?

A My two arms, my legs and my breast, sir.

A He held me first in my arms and then my legs, sir.

Q Your honor, I am just trying to —

Q He held your arms with his two hands?

Q Which hand were you touched?

A I do not know which hand, sir.

Q Which arm of yours was held by Freedie Lizada?

A I could not recall, sir.

Q Which side of your body was Freedie Lizada at that time?

A I cannot recall, sir.

A He was sitting on our bed, sir.

Q Which side of your bed was Freedie Lizada sitting on?